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2011 (3) TMI 1800

..... ce Akil Kureshi, 1. The petitioner has challenged the order dated 1.12.2008 read with further order dated 30.8.2010 passed by the Deputy Commissioner, Division-IV, Gandhinagar. The petitioner has also challenged a communication dated 19.11.2010 The petition arises in following factual background:- 1.1 An immovable property, namely office premises of A Wing 4th floor in a building called Maradia Plaza situated at C.G Road, Ahmedabad was previously owned by one M/s. Hirak Biotech Limited (The Company for short). The Company had, in course of its business, availed of certain bank loans. The Company did not repay dues to the Bank regularly. In addition to such Bank dues, the Company also had to discharge sales tax liability to the Sales Tax Dep .....

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..... ld come to ₹ 2,40,09,444/-. Pending completion of such assessment proceedings, he found it necessary that the property be put under provisional attachment. Order, therefore, directs that the company shall not dispose of the property in any manner without the permission of the competent authority. The provisional attachment was to enure for a period 6 months. Series of fresh orders of provisional attachment were passed, which are also produced on record. When the petitioner approached the department, she was informed vide communication dated 19.11.2010 that the property in question is under provisional attachment to secure the Government dues of the Company. 2. The petitioner has, therefore, challenged the said provisional attachment o .....

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..... he petitioner vehemently contended that petitioner is bona fide purchaser of the property for value without notice. The Ahmedabad Peoples Cooperative Bank Ltd. had first charge over the property. On nonpayment of dues by M/s. Hirak Biotech Ltd, property was sold to the petitioner. The petitioner has paid huge sum of money to the bank. 5.1 It was next contended that attachment order could not have been passed by the Assistant Commissioner since Section 45 of the Act authorises only Commissioner to pass such order. 5.2 It was contended that there is nothing on record to suggest that Commissioner has formed an opinion that provisional attachment as envisaged in Section 45 of the Act was necessary. 5.3 It was contended that no attachment procee .....

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..... ties, before adverting to the rival contentions, we may clarify that our only query and scrutiny in the present petition is with respect to legality of provisional attachment orders passed by the Assistant Commissioner under sub-section(1) of Section 45 of the Act. Though in prayers of the petition, formally only provisional attachment order dated 1.12.2008 is called in question and such order has already lapsed due to passage of time and that therefore, prayers made in the petition has become infructuous, in the larger interest of justice, we have looked into the contentions raised since admittedly subsequently provisional attachment orders on the same premise and grounds have been passed and presently also provisional attachment continues .....

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..... ce when such issue was raised orally before us, inquired from learned AGP regarding pendency of such proceedings. She made available for perusal several documents including notices to point out that long before passing of the first provisional order of attachment, assessment proceedings with respect to M/s. Hirak Biotech Ltd. were pending. 11. With respect to the contention that power under sub-section(1) of Section 45 can be exercised only by the Commissioner, we find that such power has been delegated under an order dated 1.4.2006 in Assistant Commissioner of Commercial Tax. Provisional orders therefore, passed by the Assistant Commissioner did not lack competence. 12. When we find that Assistant Commissioner on available material on reco .....

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..... attachment is required to safeguard interest of the Revenue looking to the dues of the dealer, no such fresh order could be passed. The section thus on one hand, require the competent officer to review the situation compulsorily at-least upon completion of the period, while so doing, does not limit his discretion to exercise such powers again if situation so arises. Contention of the petitioner that upon completion of maximum period prescribed under Sub-section(2) of Section 45, no fresh order of provisional attachment could be passed, therefore cannot be accepted. 14. Rival contentions with respect to priority of the State dues is not arising in the present petition. The Division Bench judgement in case of Baroda City Co-operative Bank ltd .....

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